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2004 DIGILAW 263 (AP)

Ananthula Buchiramulu v. Sakinala Janaki Ramaiah

2004-03-04

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) PETITIONER filed O. S. No. 16 of 2002 in the Court of Senior Civil Judge, suryapet, against the respondent herein, for recovery of a sum of Rs. 6,85,042. 00. He has also filed LA. No. 105 of 2002 under order 38, Rule 5 CPC, for attaching the property indicated therein before judgment, alleging that the respondent is likely to dispose of the same to defeat the right of the petitioner under the decree that may be passed in the suit. The Trial Court rejected the I. A. , through its orders dated 4-9-2002. Hence, this CRP. ( 2 ) THE petitioner contends that the respondent had 10% share in M/s. Ramalingeshwara Picture Palace, and he owes an amount of Rs. 6,85,042. 00. In addition to pleading that the respondent is likely to dispose of the property, he filed an affidavit of the 3rd party also. Petitioner contends that unless the property referred to above is attached before judgment, the very decree may become futile. ( 3 ) THIS Court ordered notice to the respondent. The notice was served upon the Counsel for the respondent in the Trial court, and proof of service was filed into this Court through U. S. R. No. 54 of 2004 on 8-1-2004. There is no response from the respondent. Hence, the matter needs to be proceeded on the basis of the material available on record. ( 4 ) LEARNED Counsel for the petitioner repeats the contention of the petitioner that was made before the Trial Court. In addition, he submits that the observations of the Trial court that no material was placed before it warranting attachment before judgment, is not correct, inasmuch as a third party affidavit has been filed. ( 5 ) THE petitioner filed LA. No. 105 of 2002, seeking attachment before judgment; of 10% share held by the respondent in a theatre. It is true that, ordering of attachment before judgment is not a matter of course, and it is only where there exists adequate material enabling the court to arrive at a conclusion, that the orders are to be passed under Order 38 cpc. The respondent does not dispute that he holds 10% share in M/s. Ramalingeshwara picture Palace. He disputed the claim of the petitioner in the suit. The respondent does not dispute that he holds 10% share in M/s. Ramalingeshwara picture Palace. He disputed the claim of the petitioner in the suit. That, however, is a matter, which needs to be considered in the trial of the suit. ( 6 ) THE Trial Court rejected the I. A. , mainly on the ground that, except the assertion, there did not exist any material to establish that the respondent is making attempts to alienate the said property. In a way, the Trial Court indicated that in the absence of any advertisements, or negotiations, emanating from the respondent; attachment cannot be ordered. In this context, it needs to be seen that, it is too difficult for anyone to know the mindset or proposals of any individual. There does not exist any apparatus to discern the thinking process, or proposals, on the part of an individual. It is not as if everyone is required to reveal and divulge all his proposals and ideas to the others. Transactions running into huge sums can be brought about within a very short time and without the knowledge of any others. In fact, law does not curb the liberty of an individual to do so. In matters of this nature, the state of affairs have to be ascertained more from the attitude of the person, than to insist on proof by the person complaining. If the respondent in fact, does not intend to dispose of, or part away with the property in question, one sentence in his counter-affidavit could have put an end to the controversy. As long as he does not commit to the Court that he does not intend to sell the property, the needle of suspicion swings more in favour of the petitioner, than relieving the respondent of his obligation. ( 7 ) THE Trial Court does not appear to have taken into account the third party affidavit filed by the petitioner. Even in relation to this, it has to be observed that, except making certain general allegations, one hardly would be in a position to depose to any specific facts, to substantiate the allegation. Under these circumstances, this court finds it appropriate to disable the respondent from alienating the property, than subjecting it to attachment. Even in relation to this, it has to be observed that, except making certain general allegations, one hardly would be in a position to depose to any specific facts, to substantiate the allegation. Under these circumstances, this court finds it appropriate to disable the respondent from alienating the property, than subjecting it to attachment. ( 8 ) HENCE, the C. R. P. is allowed, directing that the respondent shall not alienate or otherwise encumber his 10% of share in m/s. Ramalingeshwara Picture Palace, suryapet, till the disposal of the suit. It is also made clear that, in case he intends to dispose of the property, he can do so, only after providing adequate security for the suit amount to the satisfaction of the Trial court. No order as to costs.